Questions #16 and #17 more specifically contemplate the effectiveness of the put-back process articulated at subsection 512(g). As explained in Section III.B this mechanism is not effective for restoring wrongfully removed content and is little used. But it is worth taking a moment here to further explore the First Amendment harms wrought to both Internet users and service providers by the DMCA.[1]

It is part and parcel of First Amendment doctrine that people are permitted to speak, and to speak anonymously.[2] Although that anonymity can be stripped in certain circumstances, there is nothing about the allegation of copyright infringement that should cause it to be stripped automatically. Particularly in light of copyright law incorporating free speech principles[3] this anonymity cannot be more fragile than it would in any other circumstance where speech was subject to legal challenge. The temptation to characterize all alleged infringers as malevolent pirates who get what they deserve must be resisted; the DMCA targets all speakers and all speech, no matter how fair or necessary to public discourse this speech is.

And yet, with the DMCA, not only is speech itself more vulnerable to censorship via copyright infringement claim than it would be for other types of allegations[4] but so are the necessary protections speakers depend on to be able to speak.[5] Between the self-identification requirements of subsection 512(g) put-back notices and the ease of demanding user information with subsection 512(h) subpoenas that also do not need to be predicated on actual lawsuits,[6] Internet speakers on the whole must fear the loss of their privacy if anyone dares to construe an infringement claim, no matter how illegitimate or untested that claim may be. Given the ease of concocting an invalid infringement claim,[7] and the lack of any incentive not to,[8] the DMCA gives all-too-ready access to the identities of Internet users to the people least deserving of it and at the expense of those who most need it.[9]

Furthermore, the DMCA also compromises service providers’ own First Amendment interests in developing the forums and communities they would so choose. The very design of the DMCA puts service providers at odds with their users, forcing them to be antagonistic their own customers and their own business interests as a condition for protecting those interests. Attempts to protect their forums or their users can expose them to tremendous costs and potentially incalculable risk, and all of this harm flows from mere allegation that never need be tested in a court of law. The DMCA forces service providers to enforce censorship compelled by a mere takedown notice, compromise user privacy in response to subsection 512(h) subpoenas (or devote significant resources to trying to quash them), and, vis a vis Questions #22 and 23, disconnect users according to termination policies whose sufficiency cannot be known until a court decides they are not.[10]

The repeat infringer policy requirement of subsection 512(i)(A) exemplifies the statutory problem with many of the DMCA’s safe harbor requirements. A repeat infringer policy might only barely begin to be legitimate if it applied to the disconnection of a user after a certain number of judicial findings of liability for acts of infringement that users had used the service provider to commit. But as at least one service provider lost its safe harbor for not permanently disconnecting users after only a certain number of allegations, even though they were allegations that had never been tested in a court consistent with the principles of due process or prohibition on prior restraint.[11]

In no other context would we find these sorts of government incursions against the rights of speakers constitutional, robbing them of their speech, anonymity, and the opportunity to further speak, without adequate due process. These incursions do not suddenly become constitutionally sound just because the DMCA coerces service providers to be the agent committing these acts instead.Continue reading »

Question #12 asks if the notice-and-takedown process sufficiently protects against fraudulent, abusive, or unfounded notices and what should be done to address this concern. Invalid takedown notices are most certainly a problem,[1] and the reason is that the system causes them to be a problem. As discussed in Section II.B the notice-and-takedown regime is inherently a censorship regime, and it can be a very successful censorship regime because takedown notice senders can simply point to content they want removed and use the threat of liability as the gun to the service provider’s head to force it to remove it, lest the service provider risk its safe harbor protection.

Thanks to courts under-enforcing subsection 512(f) they can do this without fear of judicial oversight.[2] But it isn’t just the lax subsection 512(f) standard that allows abusive notices to be sent without fear of accountability. Even though the DMCA includes put-back provisions at subsection 512(g) we see relatively few instances of it being used.[3] The DMCA is a complicated statute and the average non-lawyer may not know these provisions exist or be able to know how to use them. Furthermore, trying to use them puts users in the crosshairs of the party gunning for their content (and, potentially, them as people) by forcing them to give up their right to anonymous speech in order to keep that speech from being censored. All of these complications are significant deterrents to users being able to effectively defend their own content, content that would have already been censored (these measures would only allow the content to be restored, after the censorship damage has already been done).[4] Ultimately there are no real checks on abusive takedown notices apart from what the service provider is willing and able to risk reviewing and rejecting.[5] Given the enormity of this risk, however, it cannot remain the sole stopgap measure to keep this illegitimate censorship from happening.

Continuing on, Question #13 asks whether subsection 512(d), addressing “information location tools,” has been a useful mechanism to address infringement “that occurs as a result of a service provider’s referring or linking to infringing content.” Purely as a matter of logic the answer cannot possibly be yes: simply linking to content has absolutely no bearing on whether content is or is not infringing. The entire notion that there could be liability on a service provider for simply knowing where information resides stretches U.S. copyright law beyond recognition. That sort of knowledge, and the sharing of that knowledge, should never be illegal, particularly in light of the Progress Clause, upon which the copyright law is predicated and authorized, and particularly when the mere act of sharing that knowledge in no way itself directly implicates any exclusive right held by a copyright holder in that content.[6] Subsection 512(d) exists entirely as a means and mode of censorship, once again blackmailing service providers into the forced forgetting of information they once knew, and irrespective of whether the content they are being forced to forget is ultimately infringing or not. As discussed above in Section II.B above, there is no way for the service provider to definitively know.Continue reading »

Question #1 asks whether Section 512 safe harbors are working as intended, and Question #5 asks the related question of whether the right balance has been struck between copyright owners and online service providers. To the extent that service providers have been insulated from the costs associated with liability for their users’ content, the DMCA, with its safe harbors, has been a good thing. But the protection is all too often too complicated to achieve, too expensive to assert, or otherwise too illusory for service providers to be adequately protected.

Relatedly, Question #2 asks whether courts have properly construed the entities and activities covered by the safe harbor, and the answer is not always. But the problem here is not just that they have sometimes gotten it wrong but that there is too often the possibility for them to get it wrong. Whereas under Section 230 questions of liability for intermediaries for illegality in user-supplied content are relatively straight forward – was the intermediary the party that produced the content? if not, then it is not liable – when the alleged illegality in others’ content relates to potential copyright infringement, the test becomes a labyrinth minefield that the service provider may need to endure costly litigation to navigate. Not only is ultimate liability expensive but even the process of ensuring that it won’t face that liability can be crippling.[1] Service providers, and investors in service providers, need a way to minimize and manage the legal risk and associated costs arising from their provision of online services, but given the current complexity[2] outlining the requirements for safe harbors they can rarely be so confidently assured.Continue reading »

Veoh was a video hosting service akin to YouTube that was found to be eligible for the DMCA safe harbor.[1] Unfortunately this finding was reached after years of litigation had already driven the company into bankruptcy and forced it to layoff its staff.[2] Meanwhile SeeqPod was a search engine that helped people (including potential consumers) find multimedia content out on the Internet, but it, too, was also driven into bankruptcy by litigation, taking with it an important tool to help people discover creative works.[3]

History is littered with examples like the ones above of innovative new businesses being driven out of existence, their innovation and investment chilled, by litigation completely untethered from the principles underpinning copyright law. Copyright law exists solely to “promote the progress of science and the useful arts.” Yet all too frequently it has had the exact opposite effect.

The DMCA has the potential to be a crucial equalizer, but it can only do so when the economic value of what these service providers deliver is considered by policymakers with at least as much weight as that given to the incumbent interests who complain that their previous business models may have become unworkable in light of digital technology. Service providers are economic engines employing innumerable people, directly and indirectly, and driving innovation forward while they deliver a world of information to each and every Internet user. We know economic harm is done to them and to anyone, creators and consumers, who would have benefited from their services when they are not protected.

But what needs careful scrutiny and testing are economic arguments predicated on the assumption that every digital copy of every copyrighted work transmitted online without the explicit permission of a copyright holder represents a financial loss. This is a presumption that needs careful scrutiny, with reviewable data and auditable methodology. It is quite a leap to assume that every instance (or even most instances) of people consuming “pirated” copyrighted works is an instance they would otherwise have paid the creator. For example, it tends to presume that people have unlimited amounts of money to spend on unlimited numbers of copyrighted works, and it also ignores the fact that some works may only be consumable at a price point of $0, which is something that institutions like libraries and over-the-air radio have long enabled, to the betterment of creators and the public beneficiaries of creative works alike. Furthermore, even in instances when people would be willing to pay for access to a work, copyright owners may not be offering it at any price, nor are they necessarily equitably sharing the revenues derived from creative works with the actual creators whose efforts require the remuneration.[4]

The DMCA does not adjust to reflect situations like these, nor does it incentivize copyright holders to correct their own self-induced market failures. On the contrary; it allows them to deprive the public of access to their works and to threaten the service providers enabling their access with extinction if they do not assist in disabling this access. None of these outcomes are consistent with the goals and purpose of copyright in general, and care must be taken not to allow the DMCA be a law that ensures them.Continue reading »

Despite all the good that Section 230 and the DMCA have done to foster a robust online marketplace of ideas, the DMCA’s potential to deliver that good has been tempered by the particular structure of the statute. Whereas Section 230 provides a firm immunity to service providers for potential liability in user-supplied content,[1] the DMCA conditions its protection.[2] And that condition is censorship. The irony is that while the DMCA makes it possible for service providers to exist to facilitate online speech, it does so at the expense of the very speech they exist to facilitate due to the notice and takedown system.

In a world without the DMCA, if someone wanted to enjoin content they would need to demonstrate to a court that it indeed owned a valid copyright and that the use of content in question infringed this copyright before a court would compel its removal. Thanks to the DMCA, however, they are spared both their procedural burdens and also their pleading burdens. In order to cause content to be disappeared from the Internet all anyone needs to do is send a takedown notice that merely points to content and claims it as theirs.

Although some courts are now requiring takedown notice senders to consider whether the use of the content in question was fair,[3] there is no real penalty for the sender if they get it wrong or don’t bother.[4] Instead, service providers are forced to become judge and jury, even though (a) they lack the information needed to properly evaluate copyright infringement claims,[5] (b) the sheer volume of takedowns notices often makes case-by-case evaluation of them impossible, and (c) it can be a bet-the-company decision if the service provider gets it wrong because their “error” may deny them the Safe Harbor and put them on the hook for infringement liability.[6] Although there is both judicial and statutory recognition that service providers are not in the position to police user-supplied content for infringement,[7] there must also be recognition that they are similarly not in the position to police for invalid takedowns. Yet they must, lest there be no effective check on these censorship demands.

Ordinarily the First Amendment and due process would not permit this sort of censorship, the censorship of an Internet user’s speech predicated on mere allegation. Mandatory injunctions are disfavored generally,[8] and particularly so when they target speech and may represent impermissible prior restraint on speech that has not yet been determined to be wrongful.[9] To the extent that the DMCA causes these critical speech protections to be circumvented it is consequently only questionably constitutional. For the DMCA to be statutorily valid it must retain, in its drafting and interpretation, ample protection to see that these important constitutional speech protections are not ignored.Continue reading »

Congress in the 1990s may not have been able to predict the growth of the Internet, but it could see the direction it was taking and the value it had the potential to deliver. We see this recognition first baked into the statutory language of 47 U.S.C. Section 230 (“Section 230”), a 1996 statute that provides unequivocal immunity for service providers that intermediate content from other users:

Congress finds the following: [that t]he rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens[;[1] that t]hese services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops[;[2] that t]he Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity[;[3] that t]he Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation[;[4] and that i]ncreasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.[5]

It was therefore the policy of the United States to, among other things, “promote the continued development of the Internet and other interactive computer services and other interactive media”[6] and “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”[7]

As the Notice of Inquiry soliciting comment for this study noted,[8] Congress was still of the same view about the importance of the Internet two years later when it passed the DMCA explicitly to help “foster the continued development of electronic commerce and the growth of the Internet.”[9] As per an accompanying Senate Report, “The ‘Digital Millennium Copyright Act of 1998’ is designed to facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age.”[10] As the Report continued, Congress was going to achieve this end by protecting intermediaries, observing that, “[B]y limiting the liability of service providers, the DMCA ensures that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will continue to expand.”[11]

At no time since then has Congress fundamentally changed its view on the value of the Internet. Nor should it. In these nearly twenty years we have seen countless businesses and jobs be added to the economy, innumerable examples of pioneering technology be innovated, myriad new markets previously unimaginable be created (including many for those in the arts and sciences to economically exploit), and enormous value returned to the economy. By protecting online service providers we have changed the world and brought the democratic promise of information and knowledge sharing to bear. It is therefore absolutely critical that we not create law that interferes with this promise. If anything, we should take this opportunity to reduce the costly friction that the more inapt portions of the existing law have been imposing instead.Continue reading »

To get started, here is an edited compilation of the sections that provide an overview of the argument. Sections discussing each aspect of that argument will follow.

We file this comment to drive home the point that for the Internet to be the marketplace of ideas Congress anticipated it being in 1998, and, indeed, sought for it to be, it is integral for these businesses to retain durable and reliable protection from liability arising from user-generated content. Furthermore, as long as Congress is taking the opportunity to study how the existing safe harbor has been functioning, we would flag several areas where it could be made to function better in light of these policy goals as well as areas where it should be changed to make it as protective of speech as the Constitution requires.

With respect to this study [which invited comment via responses to 30 questions], just as history is written by the victors, records are written by those asking the questions. The hazard is that questions tend to presume answers, even when the answers that they elicit may not necessarily be the answers that are most illuminating.

While there is specific input that can be proffered with respect to various parts of the statute, it would not do the inquiry justice to remain focused on statutory minutiae. The DMCA is ostensibly designed to confront a specific policy problem. It is fair, reasonable, and indeed necessary to ensure that this problem is well-defined and well-understood before determining whether, and to what extent, the DMCA is an appropriate or appropriately calibrated solution to it.

Ultimately, however, it is not possible to have a valid copyright law that in any part is inconsistent with the Progress Clause or First Amendment. To the extent that the DMCA protects intermediaries and with them the speech they foster it is consistent with both of these constitutional precepts and limitations. To the extent, however, that that DMCA suborns due process or otherwise compromises the First Amendment rights of either Internet users or service providers themselves to use and develop forums for information exchange on the Internet it is not. The statutory infirmities that have been leading to the latter outcome should therefore be corrected to make the DMCA’s protections on intermediaries and the speech they foster as durable as this important policy interest requires.Continue reading »